Perspectives on where our world is heading from a vantage point in Denver, Colorado.

12 December 2006

The PKPA works.

My very first appellate case, while I was still in law school, was legal research and brief writing concerning a high profile child custody/paternity dispute in which two states had reached opposite conclusions. Then, as now, the Parental Kidnapping Prevention Act (PKPA), a federal law that spells out which state has jurisdiction over the matter, controlled which court had the authority to resolve child custody disputes.

A recent case involving litigants who sought relief from the courts of Vermont and Virginia respectively illustrated that the PKPA still works. The trial judges in each state reached the merits of the custody dispute and reached opposite conclusions on the issues in the case. But, the PKPA's clear rules on which state is gets to make that decision allowed appellate courts in both Vermont and Virginia to resolve the dispute and reach the same conclusion for essentially the same reasons:

1. Vermont's courts had jurisdiction because Vermont was the child's home state under the Act. Why? The child had been removed from Vermont by a litigant in the Vermont case to Virginia less than six months before the Vermont litigation was begun, after the child had lived in Vermont for a prolonged period of time, and despite the fact that the other party stayed in Vermont.

2. The litigation was commenced first in Vermont. New litigation was commenced in Virginia only after the Vermont case was pending.

Given the facts above, the outcome under the PKPA is clear.

This case was newsworthy mostly because it involved custody of a child born to a mother who was part of a Vermont civil union at the time. But, the fact that courts from states on opposite ends of the gay marriage debate can reach a consensus, as a result of the PKPA, shows the wisdom of the law. It is also a fine illustration of the fact that the vast majority of legal disputes are questions resolved by judges are not resolved on a purely political basis.

The PKPA allows the child custody system at the state level to work in a society in which people frequent interstate moves by clearly allocating authority, without embroiling Congress and the federal courts in the merits of child custody laws by adopting a uniform child custody law.

This allows child custody laws to evolve at the state level. It also prevents child custody litigation from becoming hopelessly complicated with multiple lawsuits pending at the same time. Multi-lawsuit cases were much more common before the PKPA was passed, and often had no easy resolution sort of resort to the U.S. Supreme Court. In the Vermont-Virginia case discussed above, multiple lawsuits were pending until an appeal in the Virginia case shut down the Virginia litigation. But, no law can entirely prevent miscues at the trial court level when any of the facts are the least bit unusual.

Not only does the PKPA have clear rules, it is truly exceptional for providing clear rules without being arbitrary or irrelevant to the lives of the people in the litigation. There are lots of other rules the PKPA could have chosen that would have been clear, but arbitrary and irrelevant to the parties. For example, the PKPA could have declared that the court of the state where the child was born had jurisdiction. This would have been a clear rule, but would have required people to litigate in states with which they had no current connection at great expense.

In contrast, the PKPA has jurisdiction rules that cause child custody cases to be heard in a state which the child typically has a strong connnection to, without being vague about how to measure that connection. It also has sensible exceptions to the general rule, for example, for cases involving absue and neglect.

Lots of other clear rules, like the rule that a corporation's the state of incorporation is the appropriate place to file certain loan collateral papers and that people may commence lawsuits about corporate governance there against the corporation, even if the corporation does no meaningful business in that state, are far more arbitrary.

In short then, the PKPA is an excellent example of the federal government using its power to make federalism work, instead of undermining it.